Hawaii recognizes a cause of action for the wrongful death of a viable fetus

When the Wades’ 22-week-old twin fetuses were stillborn, Mr. and Mrs. Wade sued army doctors for wrongful death under the FTCA. Defendants moved to dismiss or for summary judgment, asserting that plaintiffs had no cause of action under the state wrongful death statute because the fetuses had never been “born” and had not been viable at the time of their stillbirth.

Denying defendants’ motions, the trial court held that the Supreme Court of Hawaii would allow parents of a stillborn viable fetus to sue for its wrongful death.

While noting that Hawaii had not ruled on the issue, the court observed that a clear majority of states had allowed such actions. Adopting the reasoning of those jurisdictions, the court found that, since a child born alive may sue for injuries suffered as a fetus, denial of a cause of action for an injury that killed a viable fetus would be unjust. Moreover, the court stated such a denial would immunize the more severe tort and allow a tortfeasor to eliminate his own liability by increasing rather than mitigating the results of his negligence.

Pointing out that such actions are generally limited to the death of a viable fetus, the court concluded that Hawaii would similarly limit them. The court then found that the viability of a fetus in its 22nd week could not be determined as a matter of law. Such a decision would have to be made on a case-by-case basis, with the trier of fact considering the fetus’ age as well as its individual development.